WEBVTT - #338 Jason Flom with Dewayne Dunn 0:00:03.560 --> 0:00:06.120 At ten pm on September third, two thousand and eight, 0:00:06.200 --> 0:00:09.000 forty six year old Dwayne Done returned to his Elkhart, 0:00:09.039 --> 0:00:13.000 Indiana apartment. He joined his girlfriend, Leitha Simms and their 0:00:13.039 --> 0:00:15.520 next door neighbor, sixty year old Angel Torres, who were 0:00:15.560 --> 0:00:19.200 having a few beers. The men's friendly conversation eventually turned 0:00:19.200 --> 0:00:22.239 into an argument, and Angel pulled out a bat. It 0:00:22.280 --> 0:00:25.439 should have ended when Dwayne and Leitha left Angel's apartment, 0:00:25.680 --> 0:00:28.240 but a few minutes later, Dwayne and Angel found each 0:00:28.280 --> 0:00:31.360 other again on their shared second story deck, abutted by 0:00:31.360 --> 0:00:34.520 a rickety set of stairs. Angel began swinging the bat 0:00:34.560 --> 0:00:37.879 at Dwayne, who was overheard telling Angel to stop, just 0:00:37.920 --> 0:00:41.440 before a series of audible thumps and thuds the sounds 0:00:41.440 --> 0:00:44.800 of Angel falling down the stairs. Police soon arrived to 0:00:44.840 --> 0:00:48.120 find Dwayne hovering over Angel as blood began to pool. 0:00:48.760 --> 0:00:51.159 He was rushed to the hospital, where he succumbed to 0:00:51.159 --> 0:00:54.680 his injuries a few days later. For two years, Dwayne 0:00:54.720 --> 0:00:57.560 swore in police statements and again a trial that he 0:00:57.600 --> 0:01:00.840 had neither pushed Angel Torres nor beaten at the bottom 0:01:00.840 --> 0:01:05.320 of those stairs. Yet the States expert witnesses disagreed, which 0:01:05.720 --> 0:01:10.680 appeared to be ironclad proof of Dwayne Dunn's guilt, but 0:01:10.800 --> 0:01:27.759 this is wrongful conviction. Welcome back to romful Conviction. Today, 0:01:27.800 --> 0:01:30.640 we're going to go back to Elkhart County, Indiana, a 0:01:30.720 --> 0:01:34.080 place once known as the r V capital of the world, 0:01:34.120 --> 0:01:36.840 but after what we've seen going on there, it could 0:01:37.000 --> 0:01:40.840 arguably be called the per capita wrongful conviction capital of 0:01:40.880 --> 0:01:43.440 the world. We're going to link some of the Elkhard 0:01:43.480 --> 0:01:47.440 cases we've covered so far in the episode bio. Not surprisingly, 0:01:47.680 --> 0:01:50.960 many of the same bad actors and troubling patterns are 0:01:51.000 --> 0:01:55.080 present once again in the case of Dwayne Dunn. And Dwayne, 0:01:55.120 --> 0:01:57.680 welcome to the show. Thank you. You know you got 0:01:57.720 --> 0:01:59.840 caught up in the Elkhart system, convicted for a murder 0:01:59.880 --> 0:02:03.760 that never happened. Right, People always like roll their eyes, like, 0:02:03.760 --> 0:02:06.160 what do you mean? The crime never happened. It never happened. 0:02:06.680 --> 0:02:10.040 A man named Angel Torres did, however, tragically lose his life. 0:02:10.080 --> 0:02:12.920 That's true, but that tragedy did not need to be 0:02:12.960 --> 0:02:15.560 compounded by yet another. And with us to cover this 0:02:16.000 --> 0:02:19.800 crazy story is an Indiana Deputy State Public defender. Dwayne's 0:02:19.840 --> 0:02:23.520 post conviction attorney, John Chenawi. So John welcome to the show. 0:02:23.680 --> 0:02:27.840 Thank you, and John. You're not the only person responsible 0:02:27.880 --> 0:02:30.919 for Dwayne's freedom, least of which is Dwayne, who had 0:02:30.919 --> 0:02:33.760 done a lot of pro sayliticant work on his own. 0:02:33.800 --> 0:02:36.200 But we'll also be joined later on by two more 0:02:36.240 --> 0:02:38.840 attorneys who fought for Dwayne in federal court. The director 0:02:38.880 --> 0:02:42.000 of the Indiana University School of Law Federal habeas Project, 0:02:42.160 --> 0:02:45.440 Michael Osbrook, and a public defender who was Michael's student 0:02:45.480 --> 0:02:48.320 at the time, Alex Doland, who Michael had tapped to 0:02:48.360 --> 0:02:51.920 handle oral arguments for Dwayne and ultimately was successful. So 0:02:52.000 --> 0:02:53.920 we're looking forward to speaking with them as well. But 0:02:53.960 --> 0:02:56.160 before we get into any of that, before your friend 0:02:56.240 --> 0:03:00.959 Angel's tragic demise, Dwayne, you had been leading an honorable 0:03:01.080 --> 0:03:05.160 life by anybody's definition, and you weren't originally from the 0:03:05.200 --> 0:03:06.240 Elkhart area, right. 0:03:06.760 --> 0:03:09.079 I grew up in Annapolis, went to George Washington High 0:03:09.080 --> 0:03:12.880 School and liked it, playing football, fishing, just stuff like that. 0:03:13.240 --> 0:03:16.639 Then I came to Elkhart later after I graduated and 0:03:16.880 --> 0:03:20.519 come up to Elkhart to work at the jobs. Back then, 0:03:20.600 --> 0:03:22.200 you can quit a job and go get a job 0:03:22.240 --> 0:03:23.000 the same day. 0:03:23.440 --> 0:03:25.639 So you were working in the RV industry. 0:03:25.800 --> 0:03:28.840 Yeah, Rby trailers tripping and receiving all that Forkliffe. I 0:03:29.040 --> 0:03:31.440 used to move those side walls for RB's, the big 0:03:31.560 --> 0:03:34.000 Rby's used to move the walls, the roof and the floors, 0:03:34.080 --> 0:03:36.360 all that. Just working and raising my family. 0:03:36.560 --> 0:03:39.000 Yep, you and your girlfriend Lea the Sims were raising 0:03:39.040 --> 0:03:42.880 two kids. And so in two thousand and eight, you're 0:03:43.040 --> 0:03:45.160 forty six years old and you're living in an apartment 0:03:45.160 --> 0:03:47.240 building at Elkhart and Angel Torre has lived in the 0:03:47.280 --> 0:03:50.160 apartment next door where both of your second story apartments 0:03:50.160 --> 0:03:53.480 shared a deck and the same rickety set of stairs 0:03:53.560 --> 0:03:55.360 leading up to or down from it. 0:03:55.720 --> 0:03:58.280 That's right. It's a normal stairs, like say if you're 0:03:58.280 --> 0:04:01.480 going up to a second floor apartment. But the railing 0:04:01.640 --> 0:04:05.280 was loose wooden stairs, and you know, we was always 0:04:05.360 --> 0:04:07.000 putting something on it because we were staring for the 0:04:07.000 --> 0:04:08.680 little kids when they were up there, that they were 0:04:08.720 --> 0:04:11.040 going to fall through the railing. So I had get 0:04:11.080 --> 0:04:13.600 some other kind of fencing to put up through there, 0:04:13.720 --> 0:04:15.240 and the metal poles were broke. 0:04:15.840 --> 0:04:19.520 Sounds pretty dicey, but okay, so you were you two 0:04:19.560 --> 0:04:20.520 guys friends? 0:04:20.800 --> 0:04:22.760 Oh yeah, well, we used to hang out, sit out, 0:04:22.800 --> 0:04:25.440 on the porch, drink beer. Sometime I'll have cookouts. He 0:04:25.480 --> 0:04:27.680 would come over sometime. He would cook come over, just 0:04:27.760 --> 0:04:28.840 doing navally. 0:04:28.560 --> 0:04:31.760 Things okay, and so on this particular night, the night 0:04:31.800 --> 0:04:34.080 of September thirty, two thousand and eight, what happened. 0:04:34.960 --> 0:04:38.000 Went out to walk the dog and came back. It 0:04:37.839 --> 0:04:39.400 was it was in the evening. It was late, probably 0:04:39.400 --> 0:04:42.360 around ten, and for some reason I went over his house. 0:04:42.400 --> 0:04:44.360 And I don't know if he was just drunk or wasn't. 0:04:44.400 --> 0:04:46.640 He got upset, got mad and asked me to leave. 0:04:47.160 --> 0:04:49.159 So I left, and then he went to go get 0:04:49.160 --> 0:04:51.960 his baseball bat of something. We tussled a little while 0:04:52.480 --> 0:04:55.320 and I left went in the house. For some reason, 0:04:55.360 --> 0:04:57.400 I just came back out on the porch, and I 0:04:57.440 --> 0:04:59.719 guess he seen me. He comes out on the porch, 0:04:59.720 --> 0:05:02.520 he had the bat in his hand. He reached and 0:05:02.640 --> 0:05:05.720 splut me across the bat with the bat. I said, man, 0:05:05.760 --> 0:05:07.400 you hit me with that bat again, We're gonna have 0:05:07.480 --> 0:05:10.839 a problem. And he reached to go hit again, and 0:05:10.880 --> 0:05:15.200 when I turned, he tumbled backwards down the stairs. He 0:05:15.279 --> 0:05:17.560 hit his head a couple of times going down the stairs, 0:05:17.760 --> 0:05:20.839 and when I seen him hit the bottom, I was like, man, damn, 0:05:21.200 --> 0:05:23.279 are you all right? And he didn't say nothing. So 0:05:23.360 --> 0:05:25.599 I walked down the stairs to go check on him. 0:05:25.960 --> 0:05:27.400 And when I checked on him, I was trying to 0:05:27.400 --> 0:05:29.400 step over the blood, but it was nothing I could do, 0:05:29.520 --> 0:05:32.479 so I shook him see if he moved. He didn't move. 0:05:32.640 --> 0:05:35.840 I came back upstairs at Lisa said what happened? I said, 0:05:35.880 --> 0:05:38.400 he tumbled down the stairs, he fell, and then Willie 0:05:38.400 --> 0:05:40.719 came out. He got on the cell phone and he 0:05:40.800 --> 0:05:41.600 called the police. 0:05:42.040 --> 0:05:45.200 And Willie is Leada's son, a teenager at the time, 0:05:45.240 --> 0:05:48.120 who also cased by the name of Jamar. So then 0:05:48.160 --> 0:05:48.799 what happened. 0:05:49.240 --> 0:05:51.400 Me and him walked down the stairs, went around his 0:05:51.440 --> 0:05:54.160 body and we stood on the street and I checked 0:05:54.200 --> 0:05:55.840 on him a couple of times, and then I would 0:05:55.839 --> 0:05:57.480 walk to the edge of the street to see if 0:05:57.480 --> 0:06:01.719 the police were coming. One police offer came and kept going, 0:06:02.320 --> 0:06:04.560 maybe another half a minute or so later. Then one 0:06:04.600 --> 0:06:06.800 come up to side street. He stopped and we waved 0:06:06.880 --> 0:06:09.760 him on. Then he came and pulled over. Then they 0:06:09.800 --> 0:06:11.920 went to check it on him, asked me what was 0:06:11.960 --> 0:06:14.039 going on, what had happened, and all this there and 0:06:14.120 --> 0:06:15.159 took pictures and all that. 0:06:15.880 --> 0:06:19.360 So when the police arrived at the scene, The paramedics 0:06:19.360 --> 0:06:23.440 are called and mister Torres is taken to the hospital 0:06:23.600 --> 0:06:28.480 for treatment. Some investigators from the police department arrive at 0:06:28.480 --> 0:06:32.599 the scene, They take photos, they collect evidence. So he 0:06:32.680 --> 0:06:36.640 was very severely injured and was taken off life support 0:06:36.839 --> 0:06:40.440 a couple of days after he was taken to the hospital. 0:06:40.960 --> 0:06:45.119 Back at the crime scene, the investigators when they first 0:06:45.200 --> 0:06:49.640 arrived had found a baseball bat underneath mister Torres's body, 0:06:49.720 --> 0:06:53.480 which they collected his evidence, and they spoke to the witnesses, 0:06:53.480 --> 0:06:56.440 and they spoke to Duwayne. They found some blood spatter 0:06:57.040 --> 0:06:59.040 at the scene which they photographed. 0:06:59.240 --> 0:07:02.040 Let's talk about that blood spatter. From what I've read 0:07:02.080 --> 0:07:05.159 about your case, the state's theory eventually became that Dwayne 0:07:05.200 --> 0:07:08.000 had beaten him with an unknown object after the fall, 0:07:08.160 --> 0:07:11.520 and there were what were categorized as cast off patterns 0:07:11.520 --> 0:07:15.760 on surrounding objects and surfaces from the alleged repeated swings 0:07:15.800 --> 0:07:20.600 from this sole edged, unidentified bludgeting tool. Now, curiously, though 0:07:20.800 --> 0:07:24.600 there was no cast off on your clothing, when anybody 0:07:24.640 --> 0:07:27.480 would know the most amateur sleuth in the world would 0:07:27.520 --> 0:07:29.800 know that you would have been covered in blood had 0:07:29.840 --> 0:07:33.000 you repeatedly struck Angel, but of course that was not 0:07:33.120 --> 0:07:34.200 the case, nothing like it. 0:07:34.680 --> 0:07:37.920 They found a little bit of blood on Duayne's shoe 0:07:38.240 --> 0:07:40.360 and a little bit of blood on the inside of 0:07:40.440 --> 0:07:43.360 the shorts that you were wearing. And there was no 0:07:43.440 --> 0:07:45.760 doubt that Dwayne had been at the bottom of the 0:07:45.760 --> 0:07:49.360 staircase trying to help mister Torres, and mister Torres was 0:07:49.360 --> 0:07:52.440 bleeding at that time, so if blood ended up on Dwayne, 0:07:52.440 --> 0:07:53.960 that would not have been surprising. 0:07:54.560 --> 0:07:58.360 So not only is that blood easily explainable, but so 0:07:58.480 --> 0:08:01.480 are the spatter patterns. And as it turns out, while 0:08:01.520 --> 0:08:04.679 Angel Torres's blood was in fact pooling on the ground, 0:08:05.320 --> 0:08:07.600 quite a few people had trampled through the scene. 0:08:07.760 --> 0:08:10.720 Yeah, the paramedics walked through it. All the police were 0:08:10.760 --> 0:08:13.560 in it. They took the baseball battis and picked it 0:08:13.640 --> 0:08:15.400 up and leaned it up against the car. 0:08:15.600 --> 0:08:18.800 And the bat was the only freaking thing they ever found. 0:08:19.080 --> 0:08:21.760 As we mentioned, it was under his body with no spatter, 0:08:22.520 --> 0:08:25.920 and a thorough search was conducted. There were no other 0:08:26.040 --> 0:08:29.000 implements on the scene. So anyway, the police brought you 0:08:29.040 --> 0:08:29.920 in for questioning. 0:08:30.280 --> 0:08:32.800 The first two detectives that were on the case. They 0:08:32.880 --> 0:08:35.199 kept me down there, and they went to every place 0:08:35.240 --> 0:08:37.120 I told them I went. They went to go check. 0:08:37.240 --> 0:08:39.360 Then they came back and they said all right. Then 0:08:39.400 --> 0:08:41.840 they came back the next day. The clothes. They put 0:08:41.880 --> 0:08:43.640 it all in bags, and they said, well, we're going 0:08:43.679 --> 0:08:45.480 to go send this to the lab and test it. 0:08:45.840 --> 0:08:46.880 I said, no problem. 0:08:47.040 --> 0:08:49.840 And as we mentioned, there was a droplet of Angel's 0:08:49.880 --> 0:08:53.800 blood discovered on your shoe and on the inside leg 0:08:53.880 --> 0:08:57.079 of your shorts, which was consistent with you having entered 0:08:57.120 --> 0:09:00.800 the scene having tried to help your friend, but definitely 0:09:00.880 --> 0:09:04.520 not consistent with multiple swings of a blunt object and 0:09:04.600 --> 0:09:08.880 blood flying everywhere. In fact, you were the only one, ironically, 0:09:08.920 --> 0:09:10.560 that was hit with a blunt object. 0:09:10.920 --> 0:09:14.480 When they took Dwayne in for questioning, they took photographs 0:09:14.520 --> 0:09:17.640 of his body and they found injuries where Dwayne had 0:09:17.640 --> 0:09:20.880 been hit by the baseball bat by mister Torres. They 0:09:20.880 --> 0:09:23.400 found clear evidence that he had been struck at least 0:09:23.440 --> 0:09:26.320 several times. Everything they found at the scene in terms 0:09:26.360 --> 0:09:29.320 of the physical evidence, was matching up with what Dwayne 0:09:29.520 --> 0:09:31.640 and Letha and Jamar were saying that happened. 0:09:31.840 --> 0:09:34.640 Now, the police had also questioned Letha and her son, 0:09:34.679 --> 0:09:38.120 who were the only two witnesses to what happened. What 0:09:38.160 --> 0:09:39.320 did they tell the police? 0:09:40.000 --> 0:09:42.280 Nothing that Dwayne ever touched them, That that was what 0:09:42.520 --> 0:09:45.480 was said. They investigated for a while. Look, I say, 0:09:45.559 --> 0:09:50.199 maybe thirty forty days later, maybe two months, the two 0:09:50.320 --> 0:09:52.440 detectives came back to my house one day. I said, 0:09:52.480 --> 0:09:55.720 mister dumfar as we concerned, this case is closed because 0:09:55.880 --> 0:09:57.000 we can't find anything. 0:09:57.400 --> 0:09:59.679 I said, all right, right at this point, Letha and 0:09:59.720 --> 0:10:02.319 Jami saying that you hadn't touched him, that they had 0:10:02.360 --> 0:10:05.000 heard him fall down the stairs, and had come rushing 0:10:05.040 --> 0:10:08.520 out to see what the commotion was and hadn't witnessed 0:10:08.679 --> 0:10:12.400 any beating. After that, even the autopsy hadn't ruled that 0:10:12.480 --> 0:10:15.080 the cause of death was homicide, but rather the cause 0:10:15.080 --> 0:10:18.000 of death was deemed uncertain. So for all of the 0:10:18.040 --> 0:10:22.880 reasons I just mentioned, signs pointed clearly to an unfortunate accident. 0:10:23.000 --> 0:10:27.560 But the chief deputy prosecuting Attorney, Vicki Becker, wasn't taking 0:10:27.559 --> 0:10:28.480 that as an answer. 0:10:28.880 --> 0:10:31.240 I say, maybe six months after that, she put us 0:10:31.280 --> 0:10:34.880 somebody else in the case. He brings me downtown and we. 0:10:34.840 --> 0:10:37.360 Saw the same thing in Andy Royer, Atlanta Canan's case, 0:10:37.360 --> 0:10:39.840 where after their case went cold, A new detective was 0:10:39.840 --> 0:10:43.920 assigned to close it, and again, just like Andy, they 0:10:43.920 --> 0:10:45.320 tried to get a confession out of you. 0:10:45.840 --> 0:10:48.160 He's the one that started pushing the issue. Are you 0:10:48.240 --> 0:10:50.720 hitting you did this? You did that? Just you know 0:10:50.760 --> 0:10:52.960 you kicked him? You did that? I said, man, I 0:10:52.960 --> 0:10:54.920 don't know what you're talking about. I ain't did nothing. 0:10:55.440 --> 0:10:57.640 He said, well, what if we got a witness to say, 0:10:57.720 --> 0:10:59.600 is that you kicked him? I said, well, your witness 0:10:59.640 --> 0:11:02.600 is lying. He said, well today you're going home, he said, 0:11:02.600 --> 0:11:05.079 but I want you to know it. We're still owing this. 0:11:05.200 --> 0:11:07.240 So I guess at the same time where they were 0:11:07.240 --> 0:11:08.839 bringing me, I guess they would bring at least to 0:11:08.920 --> 0:11:11.800 them in. And that's who he was really trying to pressure. 0:11:12.240 --> 0:11:14.960 She said. The officer told her that you know the 0:11:15.000 --> 0:11:17.160 Wayne kicked him. You know the Wayne hit him, don't you? 0:11:17.200 --> 0:11:19.559 And she said, well, they've kept pressing her so tough 0:11:19.840 --> 0:11:22.960 that she went on to say it. She said what 0:11:23.080 --> 0:11:25.240 he told her to say. She even said it at 0:11:25.240 --> 0:11:27.560 the trough. I believe that's how they got the warm. 0:11:28.200 --> 0:11:30.560 Now they had enough to get an arrest warrant, but 0:11:30.640 --> 0:11:32.760 they needed to find some way to support what they 0:11:32.840 --> 0:11:36.680 knew was a shaky and patently false statement. I mean 0:11:37.160 --> 0:11:40.640 Letha eventually went on to RecA the trial. So now 0:11:40.640 --> 0:11:42.640 we see another move that we've seen before in Elkhart, 0:11:42.640 --> 0:11:45.240 in Andy Royer's case, when the Indiana Police Lab wasn't 0:11:45.280 --> 0:11:49.080 giving Vicky Becker the fingerprint analysis that she wanted, so 0:11:49.160 --> 0:11:53.520 she tapped fingerprint analysis, knowing fingerprint analysis fraud David Chapman 0:11:53.720 --> 0:11:56.160 for a second opinion. In this case, the person who 0:11:56.160 --> 0:11:59.920 had performed the original autopsy, doctor Blair Trenkett, had grew 0:12:00.160 --> 0:12:03.439 the cause of death uncertain not a homicide, so they 0:12:03.520 --> 0:12:07.199 fished around for two years to find a second opinion, 0:12:07.280 --> 0:12:10.520 or rather an opinion they liked from doctor Scott Wagner. 0:12:11.360 --> 0:12:14.720 He said it was a homicide, but all he ever 0:12:14.720 --> 0:12:16.839 seen was the pictures. He never looked at the body 0:12:16.920 --> 0:12:17.400 or anything. 0:12:18.000 --> 0:12:21.360 Doctor Wagner agreed that the cause of death was blunt 0:12:21.360 --> 0:12:24.640 for its trauma and that mister Torres had died as 0:12:24.679 --> 0:12:27.920 a result of skull fractures and other injuries. Where he 0:12:28.000 --> 0:12:31.600 disagreed with doctor Trnka is that whereas doctor Trenka said 0:12:31.600 --> 0:12:34.960 that the manner of death couldn't be determined because he 0:12:35.000 --> 0:12:37.280 didn't know whether it was a fall or whether mister 0:12:37.280 --> 0:12:39.719 Torres had been injured at the bottom of the staircase. 0:12:40.120 --> 0:12:43.439 Doctor Wagner was certain that mister Torres had been injured 0:12:43.520 --> 0:12:46.840 at the bottom of the staircase. The staircase at Dwayne's 0:12:46.880 --> 0:12:51.280 place was about six seven feet down to the pavement, 0:12:51.600 --> 0:12:54.959 and doctor Wagner didn't believe that the injuries suffered by 0:12:54.960 --> 0:12:58.440 mister Torres could have been caused by a fall down 0:12:58.520 --> 0:13:01.480 a staircase of that length. He thought the injuries were 0:13:01.520 --> 0:13:03.600 so severe they must have been caused by a beating. 0:13:04.000 --> 0:13:06.520 So he determined that the manner of death was homicide. 0:13:06.960 --> 0:13:09.160 But when I kept trying to tell them and explain 0:13:09.280 --> 0:13:13.160 to him that when he slipped, he tumbled at least twice, 0:13:13.200 --> 0:13:15.800 he flipped head over foot at least twice before he 0:13:15.920 --> 0:13:16.840 hit the ground. 0:13:16.840 --> 0:13:20.400 I mean mister Torres suffered severe injuries. There was no 0:13:20.440 --> 0:13:24.360 doubt about that. But there was an explanation, There was 0:13:24.480 --> 0:13:28.679 a scientific, medical explanation for why those injuries were so serious, 0:13:28.840 --> 0:13:32.239 and they were due to the condition of mister Torres. 0:13:32.440 --> 0:13:35.360 He was out of shape, he was an alcoholic, he 0:13:35.360 --> 0:13:38.760 had a pacemaker, His bones were weak, he bled easily, 0:13:38.880 --> 0:13:41.760 his liver was susceptible to being injured because it was 0:13:41.760 --> 0:13:45.320 so swollen from the alcoholism, and a fall down even 0:13:45.320 --> 0:13:48.720 a short staircase can cause really severe injuries, especially to 0:13:48.760 --> 0:13:52.680 someone who's susceptible to injuries like mister Torres was, and 0:13:52.800 --> 0:13:55.440 the nature of the injuries were such that they looked 0:13:55.480 --> 0:13:58.040 like they had been caused by a fall. They weren't 0:13:58.080 --> 0:13:59.120 consistent with a beating. 0:13:59.400 --> 0:14:02.680 Dwayne, did you know now they had what they needed 0:14:02.679 --> 0:14:03.560 to get a conviction. 0:14:03.800 --> 0:14:05.840 Yeah. I remember the morning that they came to the door. 0:14:06.400 --> 0:14:08.520 I got ready to go to work and uh knot 0:14:08.520 --> 0:14:10.360 came on the door. My brother went and got it. 0:14:10.600 --> 0:14:12.440 He said. The police come to the door and they said, 0:14:12.440 --> 0:14:14.720 a Dwayne done here. He said, Bro, they looking for you. 0:14:14.840 --> 0:14:16.680 I said, open the door, let him in. I ain't 0:14:16.679 --> 0:14:19.200 dead none. So he came to the door. He said you Dwayne. 0:14:19.240 --> 0:14:21.240 He said, well, I need you to step outside. Said 0:14:21.240 --> 0:14:23.000 we got a warrant for your arrest. I said, a 0:14:23.040 --> 0:14:26.360 warrant A warmth for what he said, murder? I said, 0:14:26.400 --> 0:14:29.200 oh my god, turn around and put my hands up, 0:14:29.240 --> 0:14:30.360 cuffed me, put me in the car. 0:14:30.720 --> 0:14:33.840 So you were charged with first degree murder and awaited 0:14:33.880 --> 0:14:37.680 trial in jail for nine long months, and you were 0:14:37.680 --> 0:14:41.280 assigned Cliff Williams, the chief public defender for Elkhart County. 0:14:41.920 --> 0:14:45.000 I don't think much of anything was done for Dwayne 0:14:45.200 --> 0:14:48.280 in terms of investigation prior to going to trial, and 0:14:48.360 --> 0:14:50.200 in fact, Cliff Williams, there's a lot he could have 0:14:50.240 --> 0:14:51.240 done that he did not do. 0:14:51.880 --> 0:14:53.960 The trial started on a Monday. He came to see 0:14:53.960 --> 0:14:56.120 me on that Friday. This was one of only two 0:14:56.160 --> 0:14:58.080 times he came to see me the whole time I 0:14:58.160 --> 0:15:00.120 was in the jail. And then he was telling tell 0:15:00.240 --> 0:15:02.680 me that he's going to prepare over the weekend, and 0:15:02.720 --> 0:15:05.400 he had another attorney with him. She was as an assistant. 0:15:05.440 --> 0:15:07.840 I don't remember her name, but she was there. So 0:15:07.880 --> 0:15:09.960 we were talking and he was talking about, well, the 0:15:09.960 --> 0:15:12.720 state's going to have experts. We're gonna let them talk. 0:15:12.760 --> 0:15:14.960 I'm not going to question them too much. I kept 0:15:14.960 --> 0:15:17.960 looking at him and I'm like, man, And she asked him, well, 0:15:17.960 --> 0:15:20.440 why don't we have experts, and he looked at her 0:15:20.440 --> 0:15:22.440 and told her something to do with the money or 0:15:22.480 --> 0:15:24.440 something like that. I looked back, man, hold up, wait 0:15:24.440 --> 0:15:27.240 a minute, you'd be telling me who's going to testify 0:15:27.320 --> 0:15:29.400 on my side? He said, well, right now, this is 0:15:29.440 --> 0:15:31.680 just gonna be us. I looked at him, I'm like, 0:15:31.720 --> 0:15:32.200 oh my. 0:15:32.280 --> 0:15:43.400 God, We're going to take a quick break and we'll 0:15:43.440 --> 0:15:47.240 be right back. The Pacers Foundation is a proud supporter 0:15:47.280 --> 0:15:49.880 of this episode of Rawful Conviction and of the Last 0:15:49.920 --> 0:15:53.320 Mile organization, which provides business and tech training to help 0:15:53.320 --> 0:15:58.280 incarcerated individuals successfully and permanently reenter the workforce. The Pacers 0:15:58.280 --> 0:16:01.880 Foundation is committed to improving the of Hoosiers across Indiana, 0:16:02.040 --> 0:16:05.840 supporting organizations that are dedicated primarily to helping young people 0:16:05.880 --> 0:16:08.560 and students. For more information on the work of the 0:16:08.600 --> 0:16:12.720 Pacers Foundation or the Last Mile program, visit Pacersfoundation dot 0:16:12.840 --> 0:16:23.360 org or the Lastmile dot org. So all you've got 0:16:23.480 --> 0:16:25.760 is your girlfriend and her son, and we know, and 0:16:25.960 --> 0:16:28.960 listeners of the show know that loved ones are usually 0:16:29.520 --> 0:16:33.680 explained or rationalized away very easily by the state. So 0:16:33.720 --> 0:16:37.640 it almost sounds like he planned on losing, so that process. 0:16:37.720 --> 0:16:40.600 The trial began in January twenty eleven in front of 0:16:40.680 --> 0:16:45.960 Judge Terry Schumacher. The prosecution presented the questionable second opinion 0:16:46.200 --> 0:16:49.200 of doctor Wagner and then a guy named Dean Marx 0:16:49.240 --> 0:16:49.640 as well. 0:16:50.640 --> 0:16:54.680 Dean Marx is a blood spatter expert, and he testified 0:16:54.880 --> 0:16:58.200 that there were numerous areas of blood spatter at the 0:16:58.240 --> 0:17:02.800 scene and that's some of that blood spatter had been 0:17:03.000 --> 0:17:07.399 caused by cast off, meaning that there was an object 0:17:07.920 --> 0:17:11.200 that had blood on it that had been swung, and 0:17:11.240 --> 0:17:13.600 that the blood had been cast off of this object 0:17:13.640 --> 0:17:17.520 and landed on different surfaces side of the building, a car, 0:17:17.880 --> 0:17:22.480 and that indicated that mister Torres had been killed with 0:17:22.760 --> 0:17:26.199 a blunt object and that the blood spatter at the 0:17:26.240 --> 0:17:29.120 scene was caused by the swinging of this object. And 0:17:29.960 --> 0:17:33.520 the state conceded at trial that the baseball bat was 0:17:33.680 --> 0:17:36.119 not the weapon that had been used because there was 0:17:36.160 --> 0:17:37.520 no blood on the baseball bat. 0:17:37.920 --> 0:17:41.520 And as we now know, blood spatter analysis has been 0:17:41.760 --> 0:17:45.720 totally debunked as what it is, which is junk science. 0:17:45.800 --> 0:17:48.600 It's not science at all. In fact, we did a 0:17:48.600 --> 0:17:51.240 deep dive into this kind of quote unquote evidence and 0:17:51.280 --> 0:17:54.359 testimony in our podcast Wrongful Conviction Junk Science, which of 0:17:54.359 --> 0:17:56.840 course was hosted by the great Josh Dubin. So we'll 0:17:56.840 --> 0:17:58.280 have a linked in the bio and which you'll find 0:17:58.320 --> 0:18:00.680 out that most of these quote unquote the lists are 0:18:00.880 --> 0:18:03.800 other cops who have taken just a forty hour course, 0:18:03.960 --> 0:18:06.719 yes you heard that right, A forty hour course about 0:18:06.800 --> 0:18:11.520 how to testify convincingly about the fluid dynamics of blood, 0:18:11.680 --> 0:18:15.359 a subject that they don't know shit about nothing. So 0:18:15.400 --> 0:18:18.119 it's almost like an acting course more than anything else. 0:18:18.240 --> 0:18:20.720 It would be laughable if it wasn't so sinister. 0:18:21.320 --> 0:18:23.200 And you have to keep in mind we talked about 0:18:23.200 --> 0:18:26.560 this previously, but at the scene, there are pools of 0:18:26.600 --> 0:18:31.920 blood near mister Torres's body, and multiple people are stepping 0:18:32.080 --> 0:18:36.400 in these pools and they're causing blood to splash, They're 0:18:36.400 --> 0:18:39.119 getting blood on their shoes, which is then being cast 0:18:39.200 --> 0:18:43.440 off as they walk. Numerous people, paramedics, police officers, maybe 0:18:43.520 --> 0:18:45.920 even Dwayne when he was trying to help mister Torres 0:18:46.119 --> 0:18:51.480 at the bottom of the staircase. And as this progresses, 0:18:51.920 --> 0:18:56.200 and as the investigation continues, immediately after, it begins to rain. 0:18:56.800 --> 0:18:59.239 So now you've got rain and the rain drops are 0:18:59.280 --> 0:19:01.439 coming down, and any one of these things could have 0:19:01.520 --> 0:19:05.719 caused the spatter, and Marx did not consider any of 0:19:05.760 --> 0:19:07.680 that in his testimony. 0:19:08.040 --> 0:19:10.960 And unfortunately, most people serviana jury are going to be 0:19:11.040 --> 0:19:14.520 unaware that this so called expert was merely jumping to 0:19:14.640 --> 0:19:19.320 conclusions and not ruling out all of these other possibilities. Instead, 0:19:19.400 --> 0:19:23.000 this expert was only an expert in testifying or test 0:19:23.040 --> 0:19:25.359 the lying. Let's call it what it is, to whatever 0:19:25.400 --> 0:19:29.040 the state's theory was, and it'll become clear that Wagner 0:19:29.160 --> 0:19:32.480 was no different. Yet, this really was all they had 0:19:32.520 --> 0:19:36.160 against the word of what, unfortunately can be considered two 0:19:36.920 --> 0:19:41.359 interested parties. So what did Litha and Willie say on 0:19:41.400 --> 0:19:41.879 the stand? 0:19:42.119 --> 0:19:47.520 Willie testified that he had seen mister Torres go after 0:19:47.600 --> 0:19:53.560 Dwayne with the baseball bat, and that Dwayne was defending himself, 0:19:53.680 --> 0:19:57.440 and that during this struggle, mister Torres lost his balance 0:19:58.000 --> 0:20:03.680 and fell backwards down the steps, and as he was falling, 0:20:04.320 --> 0:20:08.359 his back hit the banister of the steps, and he 0:20:08.480 --> 0:20:11.639 sort of flipped over and landed on the pavement at 0:20:11.640 --> 0:20:16.920 the bottom of the staircase. Leitha testified that she heard 0:20:16.960 --> 0:20:20.200 the commotion. She comes out of the apartment and she's 0:20:20.200 --> 0:20:23.199 standing on the balcony and she sees mister Torres at 0:20:23.200 --> 0:20:27.840 the bottom of the staircase, and she sees Dwayne trying 0:20:27.880 --> 0:20:31.959 to help mister Torres and trying to help him up 0:20:31.960 --> 0:20:35.200 to his feet, and neither one of them ever testified 0:20:35.240 --> 0:20:39.080 that they saw Dwayne striking mister Torres while he was 0:20:39.160 --> 0:20:41.720 laying on the pavement. They didn't see anything other than 0:20:41.800 --> 0:20:44.520